Immigration Courts:

Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges

GAO-17-438: Published: Jun 1, 2017. Publicly Released: Jun 1, 2017.

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What GAO Found

GAO's analysis showed that the Executive Office for Immigration Review's (EOIR) case backlog—cases pending from previous years that remain open at the start of a new fiscal year—more than doubled from fiscal years 2006 through 2015 (see figure) primarily due to declining cases completed per year.

Immigration Courts' Case Backlog, Fiscal Years 2006 through 2015

Immigration Courts' Case Backlog, Fiscal Years 2006 through 2015

EOIR has taken some steps to address its workforce needs, such as entering into a contract to determine judicial staff workloads, but does not have a workforce plan that would help EOIR better address staffing needs, such as those resulting from the 39 percent of its immigration judges who are currently eligible for retirement. EOIR also does not have efficient practices for hiring new immigration judges, which has contributed to immigration judges being staffed below authorized levels. GAO found that it took an average of 742 days to hire new judges from 2011 through August 2016. By assessing its hiring process and developing a hiring strategy that targets staffing needs, EOIR would be better positioned to hire judges more quickly and address its staffing gaps.

One example of EOIR's efforts to assess court operations is the extent and reasons why judges issue continuances—temporary case adjournments until a different day or time. EOIR collects continuance data, but does not systematically assess them. GAO's analysis of continuance records showed that that the use of continuances increased by 23 percent from fiscal years 2006 through 2015. Systematically analyzing the use of continuances could provide EOIR officials with valuable information about challenges the immigration courts may be experiencing, such as with operational issues like courtroom technology malfunctions, or areas that may merit additional guidance for immigration judges.

Why GAO Did This Study

The Department of Justice's EOIR is responsible for conducting immigration court proceedings, appellate reviews, and administrative hearings to fairly, expeditiously, and uniformly administer and interpret U.S. immigration laws.

GAO was asked to review EOIR's management of the immigration court system and options for improving EOIR's performance. This report addresses, among other things, (1) what EOIR data indicate about its caseload, including the backlog of cases; (2) how EOIR manages and oversees immigration court operations, including workforce planning and hiring; and (3) the extent to which EOIR has assessed immigration court performance, including case continuance data. GAO analyzed EOIR's case data from fiscal years 2006 through 2015—the most current data available—reviewed EOIR documentation, interviewed agency officials, and conducted visits to six immigration courts selected to include courts with relatively large and small case backlogs, among other things. GAO also interviewed experts and stakeholders selected based upon, among other things, their published work on the immigration court system.

What GAO Recommends

GAO is making 11 recommendations to, among other things, improve EOIR's workforce planning, hiring, and analysis of continuance data. EOIR stated that it agrees with most of the recommendations, but did not specify whether it agrees with individual recommendations. GAO continues to believe that all 11 recommendations remain valid as discussed further in this report.

For more information, contact Rebecca Gambler at (202) 512-8777 or gamblerr@gao.gov.

Recommendations for Executive Action

  1. Status: Open

    Comments: In October 2018, EOIR officials told us that EOIR is developing an agency-wide strategic plan that will address workforce planning, among other issues. In addition, EOIR recently completed a review of the Office of the Chief Immigration Judge workforce, which resulted in a new organizational structure and staffing plan for each court. According to EOIR officials, the staffing plan addresses and mitigates gaps and updates position descriptions to more clearly define roles and responsibilities. To fully address this recommendation, EOIR's Immigration Court Staffing Committee needs to continue to develop, and then implement a strategic workforce plan that addresses key principles of effective strategic workforce planning. Once this strategic workforce plan is completed, EOIR needs to monitor and evaluate the agency's progress toward its human capital goals.

    Recommendation: To better address current and future staffing needs, the Director of EOIR should develop and implement a strategic workforce plan that addresses, among other areas, key principles of effective strategic workforce planning, including (1) determining critical skills and competencies needed to achieve current and future programmatic results; (2) developing strategies that are tailored to address gaps in number, deployment, and alignment of human capital approaches for enabling and sustaining the contributions of all critical skills and competencies; and (3) monitoring and evaluation of the agency's progress toward its human capital goals and the contribution that human capital results have made toward achieving programmatic results.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  2. Status: Open

    Comments: In April 2017, EOIR officials stated that it was implementing a new hiring plan, as announced by the Attorney General, intended to streamline hiring. Among other things, EOIR stated that the new hiring plan sets clear deadlines for assessing applicants moving through different stages of the process and for making decisions on advancing applicants to the next stage, and allows for temporary appointments for selected judges pending full background investigations. The Consolidated Appropriations Act, 2018 provided funding for EOIR to hire at least 100 additional immigration judge teams, with a goal of fielding 484 immigration judge teams nationwide by 2019. In October 2018, EOIR reported it had a total of 395 immigration judges and was continuing to hire additional judges. To fully address our recommendation, EOIR will need to continue to improve its hiring process by (1) assessing the prior hiring process to identify opportunities for efficiency; (2) developing a hiring strategy targeting short- and long-term human capital needs; and (3) implementing corrective actions in response to the results of its assessment of the hiring process.

    Recommendation: To better address EOIR's immigration judge staffing needs, the Director of EOIR should: (1) assess the immigration judge hiring process to identify opportunities for efficiency; (2) use the assessment results to develop a hiring strategy that targets short- and long-term human capital needs; and (3) implement any corrective actions related to the hiring process resulting from this assessment.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  3. Status: Open

    Comments: As of August 2017, EOIR reported that it had selected the EOIR Investment Review Board to serve as the ECAS oversight body with the Office of Information Technology directly responsible for the management of the ECAS program. As of February 2018, EOIR reported that its Office of Information Technology provided quarterly updates to the EOIR Investment Review Board to promote effective oversight of ECAS and to ensure that agency leadership receives regular updates on ECAS program performance and progress toward implementation. The Investment Review Board convened in October 2017 and January 2018 to discuss, among other things, the status of the ECAS program. To fully address this recommendation, EOIR needs to demonstrate that it has designated the EOIR Investment Review Board to serve as the ECAS oversight body.

    Recommendation: To help ensure that EOIR meets its cost and schedule expectations for EOIR Courts and Appeals Systems (ECAS), the EOIR Director should identify and establish the appropriate entity for exercising oversight over ECAS through full implementation.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  4. Status: Open

    Comments: As of August 2017, EOIR reported that it had selected the EOIR Investment Review Board as the ECAS oversight body with the EOIR Office of Information Technology directly responsible for the management of the ECAS program. As of October 2018, EOIR reported that its Office of Information Technology provides quarterly updates to the EOIR Investment Review Board. To fully address this recommendation, EOIR should document and implement an oversight plan that describes how the EOIR Investment Review Board and OIT will oversee the full implementation of ECAS, including how these bodies will, consistent with best practices for overseeing IT projects: (1) monitor program performance and progress toward expected cost, schedule, and benefits; (2) ensure that corrective actions are identified and assigned to the appropriate parties at the first sign of cost, schedule, or performance slippages; and (3) ensure that corrective actions are tracked until the desired outcomes are achieved .

    Recommendation: To help ensure that EOIR meets its cost and schedule expectations for ECAS, the EOIR Director should document and implement an oversight plan that is consistent with best practices for overseeing IT projects, including (1) establishing how the oversight body is to monitor program performance and progress toward expected cost, schedule, and benefits; (2) ensuring that corrective actions are identified and assigned to the appropriate parties at the first sign of cost, schedule, or performance slippages; and (3) ensuring that corrective actions are tracked until the desired outcomes are achieved.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  5. Status: Open

    Comments: In August 2017 and February 2018, EOIR stated that it is studying how to collect more complete and reliable data on the number and type of hearings it conducts through VTC. To fully address this recommendation, once EOIR determines how to collect more complete and reliable VTC hearing data EOIR should provide documentation describing its approach and evidence of its implementation.

    Recommendation: To provide further assurance that EOIR's use of video teleconference (VTC) in immigration hearings is outcome-neutral, the Director of EOIR should collect more complete and reliable data on the number and type of hearings it conducts through VTC.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  6. Status: Open

    Comments: As of February 2018, EOIR reported that it initiated a pilot project to collect data on Board of Immigration Appeals (BIA) appeals in which the use of VTC formed some basis for the appeal. EOIR officials reported that since they started collecting these data in August 2017, there were no appeals, as of January 2018, in which the use of VTC formed some basis for the appeal. To fully address this recommendation, EOIR should also collect data on the number of in-person hearing motions filed.

    Recommendation: To provide further assurance that EOIR's use of VTC in immigration hearings is outcome-neutral, the Director of EOIR should collect data on appeals in which the use of VTC formed some basis for the appeal, and the number of in-person hearing motions filed.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  7. Status: Open

    Comments: As of February 2018, EOIR reported that it initiated a pilot project to collect data on Board of Immigration Appeals (BIA) appeals in which the use of VTC formed some basis for the appeal. To fully address this recommendation, EOIR should use the data it started to collect in August 2017 on appeals in which the use of VTC formed some basis for the appeal from the Board of Immigration Appeals' and other data to assess any effects of VTC on immigration hearings and, as appropriate, address any issues identified through such an assessment.

    Recommendation: To provide further assurance that EOIR's use of VTC in immigration hearings is outcome-neutral, the Director of EOIR should use these and other data to assess any effects of VTC on immigration hearings and, as appropriate, address any issues identified through such an assessment.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  8. Status: Closed - Implemented

    Comments: In December 2017, EOIR established a mechanism on its public website to solicit open-ended feedback from respondents regarding their satisfaction with VTC hearings, including the audio and visual quality of the hearing. According to EOIR officials, a group of individuals within EOIR's Office of the Chief Immigration Judge is responsible for monitoring and addressing feedback received through this portal. These actions should help EOIR better ensure that its VTC program meets all users' needs, including respondents whose cases are heard and decided during VTC hearings. As a result, this recommendation is closed as implemented.

    Recommendation: To further ensure that EOIR's VTC hearings meet all user needs and help EOIR identify and address technical issues with VTC hearings, the Director of EOIR should develop and implement a mechanism to solicit and monitor feedback from respondents regarding their satisfaction and experiences with VTC hearings, including the audio and visual quality of the hearing.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  9. Status: Open

    Comments: In January 2018, EOIR established new court-based performance measures that accounted for the majority of its cases, including non-detained cases. Additionally, EOIR established performance goals for cases it considers a priority. According to EOIR, the agency will track these performance measures and regularly audit how the immigration courts are meeting these measures. To fully address this recommendation, EOIR needs to monitor courts' performance in meeting these goals.

    Recommendation: To better assess court performance and use data to identify potential management challenges, the Director of EOIR should establish and monitor comprehensive case completion goals, including a goal for completing non-detained cases not currently captured by performance measures, and goals for cases it considers a priority.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  10. Status: Open

    Comments: In August 2017, EOIR stated that it will further analyze continuance data to identify and address operational challenges as well as determine areas where immigration judges might benefit from additional guidance or training on the use of continuances. In October 2017, EOIR released new guidance for immigration judges on how to track reasons for continuances as well as requiring judges to annotate their case worksheet describing the disposition of the case with the appropriate continuance code. According to this guidance, court staff are to ensure that each continuance code is accurately entered into the agency's case management system. To fully address this recommendation, EOIR will need to systematically analyze continuance data to identify any operational challenges faced by courts or areas for additional guidance or training, and address any challenges through taking actions such as issuing the new memorandum on continuances.

    Recommendation: To better assess court performance and use data to identify potential management challenges, the Director of EOIR should systematically analyze immigration court continuance data to identify and address any operational challenges faced by courts or areas for additional guidance or training.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

  11. Status: Open

    Comments: In August 2017, EOIR stated that it partially agreed with this recommendation and will continue to monitor the timeliness and accuracy of NTA recording and implement corrective actions as needed. Additionally, EOIR stated that it will explore the need to create new guidance for immigration court staff to address instances where EOIR exceeds average recording times timeframes in the future. In January 2018, EOIR created a goal that 100 percent of all electronic and paper records should be accurate and complete. To fully address our recommendation, EOIR will need to update its policies and procedures to ensure the timely and accurate recording of NTAs.

    Recommendation: To better assess court performance and use data to identify potential management challenges, the Director of EOIR should update policies and procedures to ensure the timely and accurate recording of Notices to Appear.

    Agency Affected: Department of Justice: Executive Office for Immigration Review

 

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